A federal judge in New Jersey has extended an order that effectively puts a civil lawsuit by comedian Tracy Morgan and others against retail giant Walmart on hold.
U.S. Magistrate Lois H. Goodman issued the ruling to extend a Feb. 3 order filed on behalf of Kevin Roper, the driver of a Walmart tractor-trailer that collided with a limousine van carrying Morgan and other members of his entourage on the New Jersey Turnpike last summer. One person was killed and Morgan was seriously injured.
Walmart truck driver Kevin Roper faces criminal prosecution. Last month, attorneys representing Roper filed an appeal to once again try to halt a civil suit, which alleges negligence on the part of the retail store.
The order signed by Goodman stipulates that Walmart cannot file an answer to the civil complaint filed on behalf of Morgan and the other passengers in the van, pending an appeal hearing for Roper’s motion. Roper is not a named party in the civil suit, but his attorney contends that claims made by Walmart in the civil suit could have a negative impact on the criminal charges against him filed by the state of New Jersey. He faces five criminal charges including one count of death by auto. He has pleaded not guilty.
Goodman’s order states that the basis for stopping the civil case from proceeding until 10 days after an appeals court ruling on Roper’s motion is to “ensure his interests are adequately protected.”
“But for the plaintiffs’ maneuvering to not include Roper as a litigant in this case – despite the fact that his alleged conduct forms the basis for all of plaintiff's claims for relief – Roper would clearly be entitled to a stay,” Goodman writes in the order.
On at least two other occasions, judges have denied Roper’s motions to stop the civil suit from occurring at the same time as the criminal case. Roper’s attorney David Glassman wrote in the appeal motion that his client’s conduct “is unquestionably the focal point of (the) plaintiffs’ complaint” specifically the allegation that Roper had been awake for more than 24 hours immediately prior to the incident.
Glassman writes that a temporary stay in the civil case would protect Roper’s interests by preventing Walmart from “filing and making admissions or discovery responses that are damaging and potentially contradictory to Roper’s criminal defense strategy.”
“Even a cursory review of the media’s coverage of this matter reveals the negative impact that discovery in this action will have on Roper’s criminal case,” Glassman wrote.
He also stated that the interests of his client and the retail giant are not aligned. Walmart, which is faced with “potentially massive punitive liability for its alleged ‘pattern and practice’ of violating federal motor carrier regulations, would best serve its own interests by portraying Roper as a ‘sole-offender’…”
In addition to Morgan, the other three plaintiffs in the suit are comedian Ardley Fuqua Jr.; Morgan’s personal assistant, Jeffrey Millea; and Millea’s wife, Krista. Fuqua and Jeffrey Millea were passengers in the vehicle when it crashed.
In January Walmart announced it had reached a settlement with the family of comedian James “Jimmy Mack” McNair, who was killed in the crash. McNair was also a passenger in the limousine.
The lawsuit alleges that Roper commuted from his home in Jonesboro, Ga., roughly 750 miles from the Walmart distribution center in Smyrna, Del., before starting his work shift on the morning of Friday, June 6, approximately 13 and a half hours before the crash. A criminal complaint filed by the Middlesex County prosecutor states that Roper had not slept for “a period of in excess of 24 hours,” but the document does not state any additional details as to how investigators arrived at that conclusion.
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